Matt Rinaldi, James Madison, and the issue of liberty vs. local control

In “Liberty trumps local control” Representative Matt Rinaldi (from Irving) argues for limits on local control. The article is part of the Texas Tribune‘s “TribTalk” series that lets readers hear ideas directly from their sources. This is a great series because it brings readers directly into important debates. I appreciate Rinaldi taking the time to thoughtfully spell out the case for his bill (HB 1939) that would prohibit cities from banning plastic bags. He raises important issues and draws on important sources. However, I have to point out some reservations with his argument.

James MadisonRep. Rinaldi’s argument is relatively straight-forward: freedom is more important than local control. Rinaldi’s acknowledges that Republicans generally argue that decisions should be made as close to home as possible. However, he cites Madison in Federalist #10 to back his claim that local government pose bigger risk of creating laws that infringe on individual rights. Madison’s argument, sometimes labeled “Madisonian enlargement,” is that the way of containing the “violence of faction.” Madison argues that we cannot eliminate the sources of faction, but we can create a political system that controls the power of factions and prevents them from becoming the kind of overbearing majority that threatens the rights of a minority.

For Madison, smallness of a community contains within it the seeds of an oppressive majority:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

Thirteen statesMadisonian enlargement is the idea that a larger society is more diverse and the factions more dispersed. According to Madison, if you expand the geographic scope of government “you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.” The size and diversity of a representative democracy actually helps control special interests.

It seems fair to me to point out that Madison is using Federalist #10 to point out that the advantages he described as “enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it.” The fact that Madison is making a case for federal power does not automatically mean that Rinaldi’s application of the argument to states over local governments is inappropriate. It does suggest that the argument is complicated.

Rep. Rinaldi is offering up a kind of Goldilocks argument about the roles of states. The states are neither too hot nor too cold–they’re just right. The national government is just too darn big. The local constituency is just too darn small. In this regard, Rinaldi seems to be a part of a tradition in American politics of officials thinking that the best place to entrust power is where they are sitting. Jefferson had his doubts about the federal government and the presidency until he moved into the White House.

There are a couple of problems with Rep. Rinaldi’s argument. First, he just might be putting this faith in the wrong level of government. While Madison was concerned about the impact of “factions” on localized government, he would likely find little confidence in a legislature currently feasting on food and beverage provided by lobbyists. In fact, it would be hard to find anywhere the mischief of faction is more enthusiastically practiced professionally than around the Texas legislature in session. A state the size of Texas might dilute the mischief of some factions. At the same time, the role of professional lobbying focuses the role of special interests in a way that produces its own problems. Also, it’s not clear to me that Madison would necessarily be concerned about a community the size of Austin (population about 885,000). One of the reasons why Madison addressed the issue of the size of the nation is that some people at the time doubted that a country the size of the proposed United States (population about 3 million) could be governed.

Ban the bag logoSecond, Rinaldi is right to worry about the protection of constitutional rights. However, his argument implies that the state legislature is the best remedy to the violation of such rights. The article itself mentions several court cases where the judicial branch stepped in to protect constitutional rights. The courts seem more than willing to engage on these issues.

Finally, I have doubt about putting Austin’s ban on plastic bags in the same category as state bans on black students enrolling in public schools. Rep. Rinaldi acknowledges this but still tries to claim equal concern because bag bans, red-light cameras, and similar local ordinances “implicate important contractual and private property rights that the state has a duty to protect.” Such bans do relate to contractual and/or property rights. The problem with this argument is that pretty much everything government does at the federal, state, or local level might involve such concerns. So, the argument the local governments should only be able to act independently of the state when it does not involve businesses or private property would leave no authority at the local level.

Ultimately, it seems that liberals and conservatives agree that local governments should be empowered to make decisions–unless they make decisions that they disagree with. They may not cite the same issues, but they each see some exceptions to the case for local control.


The Comptroller in the spotlight

Texas’ brand new comptroller, Glenn Hegar, took center stage this morning to announce the biennial revenue estimate for Texas. A lot of state officials watched or listened live. Others paused for a moment and check their phone. comptroller’s revenue estimate is one of the legislative session’s most important moments—despite the fact that it occurs before the legislature officially convenes because the comptroller’s estimate become the limit on how much the legislature can plan on spending over the next two years. It is possible to appropriate more than the estimate, but very few Texas legislators are interested in taking a stand for spending more.

This is an especially important moment for Glenn Hegar. Some conservative will take their measure of Hegar’s ideology today because they want a low estimate that will constrain legislative spending. Others will take their measure of his technical competence in the years to come based on the accuracy of the estimate.

This is an especially tough year for having your credibility based on budget projections. The national economy is beginning to show more signs of strong growth. However, volatile oil prices have an impact very directly on the state’s taxes on oil production tax revenue and indirectly through the general sales tax that rises and falls with the state’s economy overall.

Making an accurate prediction of state revenues for the next several years is a nearly impossible task that will subject to all kinds of scrutiny.  In the days and years to come, Hegar will be subject to all kinds of criticism for this projection.

More on the Texas Enterprise Fund

The Dallas Morning News has a story (“Audit: Perry’s business fund gave millions to firms, universities that never sent an application“) that suggests that funds from the Texas Enterprise Fund (TEF) was being distributed by the Office of the Governor much less cautiously than the State Auditor considered prudent. The report from the Texas State Auditor identifies a number of way in which the funds were distributed without adequate documentation.

One of the most significant findings (from page 7 of the full report) was that early in the program’s development TEF funds were distributed without an application.

During the 2004- 2005 biennium, the Office [of the Governor] did not require recipients to submit an application and/or did not require recipients to create direct jobs for award agreements associated with 11 projects. The awards associated with those 11 projects totaled $222,281,000, or 44 percent of the $505,838,696 in Texas Enterprise Fund awards the Office made between September 2003 and August 2013.

That’s a lot of money going out the door with very little systematic analysis or documentation. On one hand, many Texas state employees will feel some sympathy with the Office of the Governor because we’ve grappled with the elaborate process behind spending state dollars. On the other hand, you can not help but question why the governor’s office felt it could dish out over $222 million without meticulously detailing and documenting the process. As someone who has been tormented for forgetting to get the sales tax removed from the bill for feeding a job candidate I’m amazed that the people dispensing the TEF were not more systematic in their oversight of much larger sums.

The TEF’s future was already in doubt. Some Texans are questioning the wisdom of getting the government involved in subsidizing some businesses. Others support the idea in theory but question the way in which the funds have been distributed. It’s a good bet that the TEF will be abandoned or transformed when the legislature meets next year. The questions about the fund are closely identified with Rick Perry and the next governor will want a fresh start.

Reefer Revenue

Reefer Madness

The latest incarnation of “reefer madness” is the idea that the legalization of marijuana is the solution budget woes. I’m amazed how often students suggest legalizing marijuana as their answer on assignments about balancing the budget. So, I was intrigued when I saw that the folks over at “Nerd Wallet” had put together some analysis of potential state revenue from legalized marijuana (“Cannabis Cash: How Much Money Could Your State Make From Marijuana Legalization?“).

Nerd Wallet’s estimate assumes at 15% surtax on marijuana similar to the tax in Colorado on top of the Texas’ existing sales tax rate (they use 8.15%). Of course, it’s hard to estimate the size of a market for a product that is currently illegal. I’ll just have to take their word on their estimates of how many people under 25 are/will be using marijuana. In then end, they are very proud of their nation-wide estimate of $3.1 billion per year. I’ll leave others to point out how that compares to the federal deficit.

I’m focused on Texas. Nerd Wallet’s estimate for Texas is $166 million. They take pride in pointing out how their figures compare to the budgets of small state agencies. A more realistic way of looking at this is to consider how this compares to the Texas budget overall. The bottom line is that revenue from marijuana sales would total just under .3% of the Texas state budget. That does not take into account administrative costs of the state takes up the task of deciding who gets to sell marijuana and the costs of any regulation of the product itself.

It’s worth noting that this year Texas is expected to bring in just over one billion dollars from the alcohol beverage tax alone. There are lots of other sources of revenue that could produce as much money as a tax on marijuana. You’re not going to win over many conservative Texans unless you make a bigger dent in the bottom line.

There are lots of other reasons to consider decriminalization of marijuana. However, the idea the legalization of marijuana is some kind of budget balancing miracle is a bigger hallucination than the drug itself would ever induce.

Nerd Wallet Map

Wonder Woman as political media

Cover of Wonder Woman comicWe had an interesting class discussion of “entertainment media” as “political media.” I brought in what I had learned from an interesting story in Smithsonian magazine (“The Surprising Origin Story of Wonder Woman“) that discussed the agenda behind the creation of the Wonder Woman comic character.

Wonder Woman was created with a couple of goals. One was to take the heat off of the comic book publisher because many people thought comic books were dark, perverse, and/or subversive. After only being around ten years, comic books were already blamed for leading the nation’s youth down the wrong path. Comic books were described as a “national disgrace” by one newspaper. To rehabilitate the image of comic books the publisher hired psychologist Dr. William Moulton Marston who wanted bring in characters that reflected the growth of women’s power in society. In the words of Moulton, “Frankly, Wonder Woman is psychological propaganda for the new type of woman who, I believe, should rule the world.”

There have actually been two books recently published on the origins of Wonder Woman. The Smithsonian article was based on The Secret History of Wonder Woman. I had already read a free sample chapter of Wonder Woman Unbound. I’m not a big fan of comic books, but it was a topic that generated a lot of discussion about the motivations behind media.

I know this strays beyond the usual bounds of a Texas politics course. However, I thought the reference to old comic books was an interesting way of engaging some students who usually sat out class discussion.

Cover of the Secret History of Wonder WomaCover of Wonder Woman Unbound

I don’t know

Let me say what no journalist/pundit writing about the Rick Perry indictment is brave enough to say: I don’t know.

Rick Perry Mug ShotI don’t know what’s going to happen. Why? Because I haven’t seen the evidence that was presented to the grand jury. Perry and others have not even testified. There’s so much we do not know about this story. Reporters, pundits, and their like feel a constant need to fill space. They write whether they know something or not. Why? Because they want to get ahead of the competition.

Some people are saying that Perry is guilty and will be convicted and/or should resign. Ironically, Perry might really like to resign to focus on running for president. He’s already on the road a lot.

I get suspicious when they call your indictment an “asset” or even a “blessing” for Perry. It has been portrayed in the media as some partisan witch hunt. It may well have started that way. However, Judge Bert Richardson, a Republican, named Michael McCrum as independent prosecutor for the case. Michael McCrum has an excellent reputation and enjoyed the support of the state’s two Republican senators when he was being considered for U.S. attorney for the District of Texas. Efforts to portray this as a partisan battle between Perry and a drunken Democratic District Attorney will not hold up when people see where these questions are coming from. Even if you doubt the leanings of the prosecutor, the grand jury that indicted Perry found something in that case. Some people have looked at this evidence and seen something. I’m not convinced it’s because of partisan politics.

Will it be enough there to convict Perry? Probably not

Can Rick Perry afford any more distractions and baggage? No.

At this point in his career Perry is hoping for more out of life than a lack of jail time and Republicans are not going to be interested in nominating a candidate whose flaws have been thoroughly investigated, documented, and reported. As I noted in an earlier post, Perry has already finished poorly in the Texas GOP straw poll. His candidacy does not need more problems.

Perry might still be able to pull it out. Nixon certainly did. However, citing Nixon as a model of redemption is not the most comforting image since the nation just commemorated the 40th anniversary of his resignation. Clinton (either one–maybe both) survived scandals. But again, we’re not talking about the name Republicans will enjoy referencing.

Fredo Corleone from the Godfather

Perry should be worried when Democratic strategist Robert Axelrod and Republican rivals offer up their support. Their embrace of Perry may have a very different meaning than he thinks.

The phrasing coming out of the spin machine is that this is an attempt to “criminalize” politics. That argument may resonate within the beltway in Washington or the political circles of Austin. Perry would be well served to remember that some Americans use the words “criminal” and political” interchangeably and probably wouldn’t mind putting Congress in prison. Perry (and everyone else in politics) would be wise not to embrace this argument because it equate embraces everything Americans hate about “politics as usual.”

This indictment is a serious problem for Perry. Strategists and pundits who dismiss it do so at their peril. There is a lot of this story left to play out. I don’t mind admitting that I don’t know what is going to happen. And, I’m in no rush. Perry is not on the ballot in 2014. Texans have other decisions to ponder.


The “new” Rick Perry

BuKXyzaCAAAu9Fy.jpg-largeNational Journal recently ran a cover story on “The New Rick Perry.” National Journal is not widely read outside of DC, but inside DC it is widely respected for the kind of in-depth analysis that most publications never seem to find room for.

The article on the “new” Rick Perry is a good example of why National Journal is widely read by people who think seriously about politics. Michelle Cottle has recognized that Perry is building a new image in an effort to jump-start a stalled presidential bid.

The “new” Perry label is especially meaningful to longtime political observes because it harkens back to the “new Nixon” that emerged from devastating back-to-back defeats in the presidential race in 1960 and the 1962 California gubernatorial election. Politically, Nixon was dead in the water. In fact, he had told the press after the election that “you don’t have Nixon to kick around any more, because, gentlemen, this is my last press conference.”

Perry has faced his defeats. His stumbles in the 2012 campaign have been documented. More recently, the results of the Texas Republican straw poll (“Ted Cruz wins presidential straw poll“) made clear that Rick Perry’s future was in jeopardy–unless he makes some changes.

Ted Cruz 43.4%
Ben Carson 12.2%
Rand Paul 12.1%
Rick Perry 11.7%
Jeb Bush 3.3%
Scott Walker 2.9%
Other 2.7%
Marco Rubio 2.6%
Paul Ryan 2.0%
Rick Santorum 1.9%
Bobby Jindal 1.7%
Chris Christie 1.3%
Undecided 1.1%
Mike Pence 0.6%
John Kasich 0.5%
Steve King 0.2%

The problem was not Perry simply finishing behind Ted Cruz . Cruz is a great match with the Republican base in Texas in 2014 and he would be tough to beat with the kinds of Republicans who filled the state convention this summer. Perry could easily say that the Texas GOP is different from the national party and that he would enjoy broader support in other states. However, finishing in fourth place suggests that his appeal has become very narrow. Finishing behind Ben Carson, a newcomer known primarily for his appearance at the National Prayer Breakfast in 2013, should warn Perry that Texas Republicans are looking hard for alternatives to Perry. Finishing behind the Rand Paul, the new face of the Libertarian wing of the party, should tell him a little about the future of the Republicans. The “Texas miracle” is not firing up voters in Texas. Why would it win hearts and minds in other states?

Finishing behind Cruz also tells us that Perry can no longer command the spotlight in Texas politics. Cruz is exhibiting more star power than Perry. And, unfortunately for Perry, star power is important for fundraising. Presidential candidates need the support of large donors to get their campaigns started. Perry needs Republicans to give him thousands of dollars and then get on the phone and convince their friends to contribute to Perry. Writing those checks and making those calls requires a lot of confidence in the candidate. Perry’s failed 2012 campaign gave Republican doubts about his breadth of his appeal and Texas straw poll renewed doubts about the depth of his appeal.

The Rick Perry we knew if not going to get elected president. His work so far has not resonated sufficiently with voters. Perry recognizes the need for some extensive rebranding to excite donors and win the hearts of Republican voters. The National Journal article could have used the language of comic books and movies and talked about a Perry “reboot.” That might have been familiar to more readers.  However, the fact that the “new” Nixon won the presidency in 1968 (and again in a landslide in 1972) after his defeats. The Nixon reference is an excellent remainder that anything is possible in politics. The Republican field is wide open and the new Rick Perry might prove much better than the old Perry. The National Journal story does a good job of previewing the new Rick Perry and anyone thinking about Perry’s presidential aspirations needs to give it a read..